May 29, 2008
ERIKA L. BLANKE, PLAINTIFF-APPELLANT,
DANIEL L. BLANKE, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FM-10-27-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 26, 2007
Before Judges A. A. Rodríguez and Collester.
Erika L. Blanke appeals from the March 30, 2007 post-divorce judgment order that modified the parenting-time agreement between her and Daniel L. Blanke. The most substantial modification concerned an additional, significant restriction on unsupervised time with the parties' daughter and Linda Schaefer, her maternal grandmother. We reverse and remand to the Family Part.
The parties were married on October 10, 1998. One daughter was born of the marriage, now age eight. In 2001, the couple separated. At the time, the mother had custody of the daughter. Ericka lived with her daughter and her mother. In April 2004, Erika asked Daniel to take custody of the daughter because she was concerned about Schaefer's drinking problem. Just before this occurred, Daniel had filed for divorce.
Daniel filed an order to show cause seeking temporary custody. The judge granted Daniel temporary custody pending a hearing. The couple was able to resolve this issue by way of a consent order entered on February 25, 2005. In that order, it was agreed that the parties were to have joint legal custody with Daniel retaining residential custody. A visitation schedule was established between the parties.
Daniel's complaint for divorce was dismissed for lack of prosecution. Thereafter, Erika filed the present action for divorce in Hunterdon County. Daniel did not contest the divorce.
Erika moved to change or alter custody. Judge Stephen Rubin ordered Daniel to authorize Erika to receive any information from school and to be added to the authorized list for school pick-up. Judge Rubin also ordered a full custody evaluation by an agreed upon mental health professional. The parties agreed to retain Elane Lee-Isa, MS, ACSW, LCSW of Alpha Family Practice, as the professional to conduct the custody evaluation. She interviewed the parties, as well as their daughter, Schaefer, Erika's therapist, and Daniel's parents. Lee-Isa made the following recommendation regarding Schaefer:
Linda Schaefer seems to be a very caring and capable individual who has allowed alcohol to dominate her life and place herself and others at risk, especially [the granddaughter]. If she is to continue to be an alternative caregiver for [the granddaughter], she must be required to take an immediate urine drug screen and random drug screenings indefinitely to ensure her abstinence. One year of sobriety does not constitute a cure. Linda Schaefer is at risk of relapse due to her prolonged abuse of alcohol. She must be required to attend regular AA meetings as well. There must be a means to substantiate her attendance.
The parties eventually reached an agreement that was placed on the record. Judge Rubin entered an amended judgment of divorce, incorporating this agreement. The agreement addresses the issue of Schaefer's contact with the granddaughter. Paragraph 11 of the Agreement states:
Pursuant to the specific recommendations of the court appointed expert the maternal grandmother shall comply with provisions of her report regarding monitoring of [the] sobriety issue.
Compliance shall be completed by way of reports, attendance records, screening, etc. being given to Court appointed expert to determine when child care by maternal grandmother is authorized. Cost of this process shall be borne by [Schaefer].
We note that the Agreement does not expressly forbid unsupervised visitation with Schaefer.
One day in March 2007, Erika was suppose to pick up the daughter from Daniel's home to begin her weekend visitation. Due to her work schedule, Erika was unable to pick the daughter up after school. She asked Schaefer to pick the daughter up. Daniel confronted Schaefer and advised her that she would not be able to pick up the daughter "because the Court Order does not allow it." He also continues to refuse Erika's request that Schaefer watch the granddaughter because "there is no document stating that [Schaefer] is sober."
As a result of this incident, along with Daniel's threat to have Schaefer arrested should she come to his residence again to pick up the granddaughter, Erika moved to enforce litigant's rights and/or to change custody. Daniel opposed the motion, but did not file a cross-motion.
The matter was heard by a different judge. He took no testimony. The only evidence presented to the judge was two certifications by Erika and Daniel's certification. There were conflicting factual allegations by the parties in their certifications regarding several issues, including Schaefer's sobriety.
Despite this procedural posture, the judge made the following "findings:"
[Schaefer] shall not have unsupervised time with the parties' daughter . . . at this time or drive [the granddaughter] until she has presented proof that she has attended regular AA meetings for six consecutive months and has provided the defendant biweekly drug screen results during these six months. Moreover, once Ms. Shaefer has provided such proofs to the defendant, she shall bring a hand-held breathalyzer device with her for pick-up and drop-off of [the granddaughter] and shall administer a breathalyzer test in the defendant's presence to ensure her sobriety for another six months. Until Ms. Shaefer has complied with all of these requirements she shall not be permitted to drive [the granddaughter] or have unsupervised time with her. The defendant shall not unreasonably withhold his consent to let Ms. Shaefer pick-up or drop-off [the granddaughter] Once Ms. Shaefer has satisfactorily complied with the above limitations.
Thus, the judge modified the agreement of the parties regarding Schaefer's contact with her granddaughter without any request to do so by either party.
Erika appeals, contending that the judge erred by: (1) not enforcing the parties' agreement; (2) not allowing Schaefer visitation with her granddaughter; and (3) ordering additional restrictions on Schaefer without any application to do so. We agree.
We are extremely mindful that Schaefer's sobriety or lack thereof is crucial to the court permitting, proscribing or restricting contact with her granddaughter. Her sobriety is a fact that must be determined by the court. Therefore, the judge should have held an evidentiary hearing to determine whether Schaefer presented any threat to her granddaughter, and if so, the proper restraints. See Fusco v. Fusco, 186 N.J. Super. 321, 327 (App. Div. 1982). The visitation issue by Schaefer should not have been made on the basis of conflicting certifications by Erika and Daniel. The judge's decision to deny Schaefer visitation is contrary to the parties' agreement. Moreover, it was made without an evidentiary basis, without examination and cross-examination of witnesses and cannot stand. Ibid. We held in Wagner v. Wagner, 165 N.J. Super. 553, 555 (App. Div. 1979), certif. denied, 85 N.J. 93 (1980) that, "the matter of visitation is so important, especially during the formative years of a child, that if a plenary hearing will better enable a court to fashion a plan of visitation more commensurate with a child's welfare," it must hold one, even if the parties have waived it.
It must also be emphasized that R. 1:6-2(b) authorizes the trial judge, in certain cases, to determine in their discretion the mode and manner of disposition of motions and whether they will be orally argued or not. That practice is further defined in matrimonial causes by R. 5:5-4(a), which provides that in exercising its discretion pursuant to R. 1:6-2(b), "the court shall ordinarily grant requests for oral argument on substantive and non-routine discovery motions and ordinarily deny requests for oral arguments on calendar and routine discovery motions."
However, these rules address only the question of oral argument on motions. The scope of those rules extends, therefore, only to those motions that are appropriately decided without further evidence. Fusco, supra, 186 N.J. Super. at 328. Consequently, all that is intended by those rules is to give the trial judge the option of dispensing with oral argument when "no evidence beyond the motion papers themselves and whatever else is already in the record is necessary to a decision." Id. at 329. "It was never the intention of these rules to dispense with due process altogether by eliminating the necessity of an evidential basis of decision." Ibid.
Moreover, we note that credibility was an issue in the case. Credibility is always for the factfinder to determine. Ferdinand v. Agric. Ins. Co., 22 N.J. 482, 490-92 (1956). And "[a] case may present credibility issues requiring resolution by the trier of fact even though a party's allegations are uncontradicted." D'Amato by McPherson v. D'Amato, 305 N.J. Super. 109, 115 (App. Div. 1997).
The March 30, 2007 order is reversed. The matter is remanded for an evidentiary hearing consistent with this opinion. We do not retain jurisdiction.
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